ACTA is no Higgs Boson

July 2012 will be remembered through the annals of history as the month where a particle with many similarities to a Higgs Boson was discovered. Through the experiments carried out at the Large Hadron Collider at CERN in Switzerland, we are now one step closer towards the confirmation of the existence of a proposed elementary model in the Standard Model of particle physics, the elusive Higgs Boson.

The beginning of July 2012 also saw the European Parliament widely rejecting the proposed Anti-Counterfeiting Trade Agreement (ACTA) following mass public out-roar. But ACTA is no Higgs Boson.

Whilst scientists are now eager to frame all accepted theories of the creation and makings of the universe through the new found lens of the latest CERN discovery, legislators are still trying to understand what will be the next step in the ACTA saga.

In any event, Higgs Boson is truly revolutionary; ACTA is anything but. The major scope of ACTA was to harmonise present laws regarding the enforcement of intellectual property rights. Some might question why did the European Union require this when all laws relating to IPR enforcement emanate from the same directives and regulations which are transposed by its Member States. The answer is simple. ACTA could have served as a necessary tool with which countries which do not enjoy the same level of protection as that found in the EU would have been obliged to revise their laws and increase their level of protection regarding intellectual property rights. After all, the European Union does not exist in a vacuum and it is therefore fundamental to ensure that our business partners who are not EU Members also guarantee a sufficiently high level of protection.

Higgs Boson is unprecedented; most of the provisions contained in the ACTA text are already found in our laws. This point was made amply clear during the sittings held in front of the European Affairs Committee of our Parliament earlier on this year. The Attorney General, representatives from customs as well as the Malta Communications Authority expounded on various local legislation, such as our E-Commerce Act, confirming that our laws already included the mechanisms and protections relating to our use (and abuse) of the Internet. Nevertheless, the vote at the European Parliament was unequivocal and reflected public sentiment towards ACTA. So where did it all go wrong?

It is sad that the European Parliament did not wait for the opinion of the European Court of Justice on whether the introduction of ACTA would have threatened the fundamental liberties of citizens. As any other international trade agreement, the final text of ACTA contained various generic provisions which gave rise to numerable fears as to what real effects its introduction would have on the way in which we enjoy the Internet amongst other things. The European Court of Justice would have finally given an authoritative interpretation of the fabled ACTA text on which the European Parliament would have voted on facts and not on fears.

Internet has been rife with various claims of what ACTA really is. On top of the list is the video posted by Anonymous on Youtube titled 'What is ACTA'. The video made it clear that ISPs would become policemen checking our every digital move whilst all copyright infringers would become criminals even if you share a fried chicken recipe with your wife. Very few noticed however that Anonymous had cleverly placed a small caveat at the beginning of the video stating in small print that the position contained in the video might not reflect the final text. It certainly did not. The rest, including all the protests held in Malta and elsewhere last February, is history.

Any post-mortem following the ACTA debate will surely shed light on the fact that nobody wants governments to mess with our Internet. The issue is however that citizens are not sufficiently informed of the various degrees of protection that already exist in our laws. It is also undeniable evidence of the increasing 'free culture' that we live in where we almost automatically conclude that anything available on the net is free and legal. ACTA would not have served as a magic wand by which all challenges posed by the struggle between law and technology would have been solved but it served as a way with which this legal reality caught the attention of a wider audience.

Law and information technology are already not the best of allies; put in a dose of politics in the mix (as has happened in front of the European Parliament but also in our shores) and you end up with a deadly concoction.

These recent developments have further crystallised the mass perception that the Internet is indeed a civil right and any new law creating uncertainty as to whether such civil right will be impinged should be taken very seriously.